ALONZO GIBSON-BEY, PETITIONER V. UNITED STATES OF AMERICA
No. 90-6097
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The District Of Columbia
Court Of Appeals
Brief For The United States In Opposition
OPINION BELOW
The opinion of the District of Columbia Court of Appeals (Pet. App.
1-3) is not reported.
JURISDICTION
The judgment of the court of appeals was entered on September 18,
1990. The petition for a writ of certiorari was filed on October 29,
1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1257(3).
QUESTION PRESENTED
Whether petitioner was entitled to a new trial on the basis of
newly discovered evidence.
STATEMENT
Following a jury trial in the Superior Court of the District of
Columbia, petitioner was convicted of armed robbery, in violation of
D.C. Code 22-2901 and 22-3202, and two counts of armed kidnapping, in
violation of D.C. Code 22-2101 and 22-3202. He was sentenced to nine
to twenty-seven years' imprisonment. The court of appeals affirmed.
Pet. App. 1-3.
On January 5, 1983, petitioner and an accomplice accosted Gary
Perry as he was entering his car in a convenience store parking lot.
They forced Perry into his car at gunpoint and demanded money.
Petitioner and his accomplice took Perry's watch, which was valued at
$500, after discovering that Perry had only $10 in cash. Petitioner
also threatened to kill Perry. After driving around for about twenty
minutes, petitioner and his accomplice let Perry out of his car and
drove off. Gov't C.A. Br. 2-3.
On January 17, 1983, Perry's car was recovered in Montgomery
County, Maryland, after it was stopped by police. The driver of the
car, Marcus Banks, was a friend of petitioner. Banks falsely
identified himself to the police as petitioner. Thereafter, Perry
identified petitioner from a photo array and at a pretrial lineup.
Perry also identified petitioner at trial. Gov't C.A. Br. 4-6.
Prior to trial, petitioner informed his attorney that Nathaniel
Washington had confessed to petitioner's sister that Washington had
committed the robbery and kidnapping. The lawyer interviewed
Washington, who refused to state who had committed the offenses. In
light of Washington's evasiveness, the lawyer decided not call him as
a witness at petitioner's trial. For similar reasons, and because of
her obvious interest in the case, the lawyer determined not to call
petitioner's sister as a witness. Gov't C.A. Br. 8.
After trial, petitioner moved to vacate his sentence, contending,
inter alia, that his lawyer had been ineffective by not presenting
Washington's statements to the jury. Following an evidentiary
hearing, the trial court denied the motion. Gov't. C.A. Br. App.
A22-A23. The court of appeals affirmed petitioner's conviction and
the denial of his motion to vacate. Id. at B26. This Court denied
certiorari. 109 S. Ct. 3171 (1989).
Meanwhile, petitioner obtained a new attorney. In June 1988,
Washington -- who was in prison with petitioner serving sentences for
two unrelated armed robberies -- told a private investigator that
Washington and another man had kidnapped and robbed Perry, and that
petitioner was not the other man. In August, Washington repeated his
story to the investigator and petitioner's new attorney. Washington's
statement was tape recorded. Gov't C.A. Br. 9.
In October 1988, petitioner filed a motion for a new trial on the
ground that Washington's statements, coupled with evidence that
Washington had committed several armed robberies using the modus
operandi that had been employed in this case, constituted newly
discovered evidence. The trial court denied the motion. It held that
Washington's 1988 statements were not "new" evidence because the
substance of Washington's statements was known to petitioner before
his trial. The court further concluded that the evidence would not
have resulted in an acquittal. The court said that Washington's
statement was uncorroborated because Washington did not present a
sworn statement confessing to the crimes, and found that the evidence
of Washington's own armed robberies would not have led to an
acquittal. The court reiterated its prior finding that petitioner's
trial attorney had acted conscientiously in not presenting
Washington's evidence at trial. Gov't C.A. Br. App. C31-C33.
The court of appeals affirmed. Pet. App. 1-3. It held that the
district court did not abuse its discretion in denying petitioner's
motion for a new trial. The court noted that, at the evidentiary
hearing on petitioner's motion to vacate his sentence, both petitioner
and his attorney testified that Washington had told them that
Washington and another person, not petitioner, had committed the
crimes. The court also observed that petitioner did not assert that
Washington would testify in court to what he told the investigator,
nor did he corroborate Washington's statement. Pet. App. 1-3.
ARGUMENT
Petitioner does not assert that the denial of his motion for a new
trial violated any provision of the United States Code or the
Constitution. Instead, he asserts that the District of Columbia
courts misapplied their own rules of criminal procedure. "(T)he
administration of criminal law in matters not affected by
constitutional limitations or a general federal law is a matter
peculiarly of local concern." Fisher v. United States, 328 U.S. 463,
476 (1946). Thus, the petition should be denied under this Court's
"longstanding practice of not overruling the courts of the District on
local law matters 'save in exceptional situations where egregious
error has been committed.'" Pernell v. Southall Realty, 416 U.S. 363,
369 (1974) (quoting Fisher, 328 U.S. at 476).
There was no error in this case. Petitioner accepts (Pet. 16) the
legal standard applied by the District of Columbia courts. To obtain
a new trial on the basis of newly-discovered evidence under Rule 33 of
the Superior Court Rules of Criminal Procedure, a defendant must show
that (1) the evidence was discovered after trial; (2) he exercised
due diligence in obtaining the evidence; (3) the evidence is
material, not merely cumulative or impeaching; and (4) the evidence
probably would produce an acquittal. Pet. 16 (citing Smith v. United
States, 466 A.2d 429, 432-433 (D.C. 1983); Heard v. United States,
245 A.2d 125, 126 (D.C. 1968)). /1/ Such motions are granted only in
exceptional circumstances, Huggins v. United States, 333 A.2d 385, 387
(D.C. 1975), and their denial is reviewed only for abuse of
discretion, Derrington v. United States, 488 A.2d 1314, 1339 (D.C.
1985), cert. denied, 486 U.S. 1009 (1988).
The trial court did not abuse its discretion by denying
petitioner's motion for a new trial. First, the substance of
Washington's exculpatory statement was not "new," but was known to
petitioner and his lawyer before trial. Petitioner was told by his
sister that Washington had confessed to the crimes. Petitioner's
attorney, acting on that information, interviewed Washington and was
told by him that petitioner did not commit the crime. /2/ Thus,
Washington's repetition of his story to the private investigator did
not constitute newly discovered evidence. See, e.g., United States v.
DiBernardo, 880 F.2d 1216, 1224-1225 (11th Cir. 1989); United States
v. Metz, 652 F.2d 478, 480 (5th Cir. 1981).
Second, Washington's statement to the investigator was not likely
to produce an acquittal. Indeed, it probably was not even admissible.
In Laumer v. United States, 409 A.2d 190, 199 (D.C. 1979), the
District of Columbia Court of Appeals adopted the standard of Fed. R.
Evid. 804(b)(3) for admitting extrajudicial statements that expose the
declarant to criminal liability but exculpate the defendant. Rule
804(b)(3) states that such statements are admissible only where
"corroborating circumstances clearly indicate the trustworthiness of
the statement." There is no such corroboration in this case. The tape
recording corroborates only petitioner's assertion that Washington
made the statements attributed to him, not the truth of the statements
themselves. /3/ Washington was not under oath when he made his
statement to the investigator, and there is no indication that he
would have repeated his statement in court. Nor was Washington
willing to identify his accomplice. In addition, petitioner and
Washington are fellow prison inmates who have discussed the case.
Pet. 15 n.3. Because Washington is already serving a prison sentence
on other armed robbery charges, he may feel that he has little to lose
by confessing to an additional robbery.
The government presented a substantial case against petitioner.
The victim identified petitioner as one of his assailants from a photo
array, at a pretrial lineup, and at trial. Accordingly, the trial
court's decision to deny the motion for a new trial was not an abuse
of its discretion.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
THOMAS E. BOOTH
Attorney
JANUARY 1991
/1/ The same standard applies under Fed. R. Crim. P. 33, which is
identical to Rule 33 of the Superior Court. See, e.g., United States
v. Alvarado, 898 F.2d 987, 994 (5th Cir. 1990); United States v.
O'Dell, 805 F.2d 637, 640 (6th Cir. 1986), cert. denied, 484 U.S. 859
(1987); United States v. Adams, 759 F.2d 1099, 1108 (3d Cir.), cert.
denied, 474 U.S. 906 (1985).
/2/ The court of appeals stated that petitioner talked directly
with Washington prior to trial. Pet. App. 2 n.3. It appears,
however, that Washington's statement was conveyed to him by
petitioner's sister. See Gov't. C.A. Br. 8. In any case, both
petitioner and his lawyer knew of the evidence before trial.
/3/ Petitioner's reliance (Pet. 20) on Laumer v. United States, 409
A.2d 190 (D.C. 1979) is misplaced. Laumer held that a declaration
against penal interest is admissible only when corroborated. Here,
Washington's statement was not corroborated.